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Court of Criminal Appeal 25 October 2024

Stanton v R

[2024] NSWCCA 185

Assault & violenceTheft & propertyPublic order & justice offences
CRIME — APPEALS APPEAL AGAINST SENTENCE AGGREGATE SENTENCE APPEAL AGAINST SENTENCE OFFENDERS DISPARITY BETWEEN SENTENCES

Citation: Stanton v R [2024] NSWCCA 185
Court: Court of Criminal Appeal, NSW
Date: 25 October 2024
Judges: Davies J (leading judgment); Garling J; Chen J (both agreeing)

Background

The applicant pleaded guilty in the Local Court to ten offences spanning two distinct episodes of criminal conduct. The first episode involved community offending: the applicant broke into a residence in Maryland, Newcastle, stealing a wallet and car keys while five people slept inside. Days later, he and two co-offenders used that stolen vehicle to commit offences across five separate establishments in a single night, including threatening staff at a bakery and a hotel. The applicant was on bail at the time.

The second episode involved offending while on remand at Parklea Correctional Centre. The applicant and co-offender Aaron Creighton left their cell during a lockdown, threatened prison officers with weapons, damaged property, and lit four fires. The riot squad and incident response team were required to subdue them.

In the District Court, the applicant was sentenced to an aggregate term of 11 years' imprisonment with a non-parole period of 6 years, representing a statutory ratio reduction to 54.5% based on a finding of special circumstances. He applied to the Court of Criminal Appeal for leave to appeal on two grounds: that the sentence was manifestly excessive, and that the disparity between his sentence and that of co-offender Creighton (who received 12 years with a 7-year non-parole period) gave rise to a justifiable sense of grievance.

  • Whether the aggregate sentence of 11 years was manifestly excessive, including whether the indicative sentences were too high, whether accumulation was excessive, and whether insufficient weight was given to the applicant's subjective circumstances
  • Whether the disparity between the applicant's sentence and that of his co-offender Aaron Creighton gave the applicant a justifiable sense of grievance under parity principles

Decision

The Court dealt with manifest excess first, noting that parity analysis assumes the sentence under review is otherwise free from error. The Court rejected all three sub-grounds of Ground 2. Indicative sentences were found to be well within the available range, and the Court reiterated that even if an individual indicative sentence were excessive, that does not automatically render an aggregate sentence excessive. A challenge to the accumulation of indicative sentences was also rejected: the Court noted that significant accumulation for remand prisoners who reoffend in custody is consistent with the legislative policy in s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW). As to the subjective case, the sentencing judge had expressly considered the applicant's youth, deprived background, remorse, and rehabilitation prospects, reducing his moral culpability accordingly. Insufficient weight attributed to matters that were actually considered does not constitute appellable error of the kind described in House v The King.

Garling J added a detailed critique of how Ground 2 had been framed, observing that manifest excess is a latent error (a conclusion about the overall sentence) rather than a patent error (a specific identifiable mistake). The ground had been improperly constructed by packaging complaints about indicative sentences, accumulation, and weight as if they were separate patent errors causing manifest excess. Indicative sentences are not themselves amenable to appeal as discrete grounds, and importing them as sub-grounds conflates two distinct categories of error. Garling J described this approach as contrary to principle and contrary to well-settled law.

On parity, the Court found the applicant had no justifiable sense of grievance. The sentencing judge had given detailed consideration to parity, and indicative sentences for the same offences were either identical between the two co-offenders or explicable by the operation of a Form 1. Creighton's higher aggregate sentence (12 years, non-parole period 7 years, with a lesser reduction in the statutory ratio) reflected his worse criminal history and the more serious additional charge of armed robbery causing wounding. Both offenders shared similarly deprived backgrounds and were of comparable age, and the sentencing judge treated those matters consistently. The disparity was found to be entirely appropriate.

Orders Made

No orders were made in this decision.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that manifest excess is a latent error, meaning it is a conclusion about whether an overall sentence falls outside the available range, not a label that can be applied to bundled complaints about individual indicative sentences, accumulation, or the weight given to subjective factors.

  • Indicative sentences within an aggregate sentencing structure are not independently amenable to appeal. Even where an individual indicative sentence might be considered excessive, that finding does not automatically render the aggregate sentence manifestly excessive.

  • Under s 56 of the Crimes (Sentencing Procedure) Act 1999 (NSW), significant accumulation of sentences is consistent with legislative policy where a remand prisoner commits further offences while in custody.

  • A failure to attribute sufficient weight to a mitigating factor that was in fact considered by the sentencing judge does not constitute an appellable error of the kind identified in House v The King (1936) 55 CLR 499.

  • Parity does not require identical sentences between co-offenders. Where differences in criminal history and the gravity of individual charges justify a higher sentence for one co-offender, the other offender does not acquire a justifiable sense of grievance simply because the gap between their sentences is modest.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW): ss 33, 97, 112, 113, 114, 154A, 195
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 21A, 53A, 56
- Road Transport Act 2013 (NSW): s 53

Cases
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- CMB v Attorney General for NSW (2015) 256 CLR 220; [2015] HCA 9
- BJS v R [2013] NSWCCA 123; (2013) 231 A Crim R 537
- PD v R [2012] NSWCCA 242
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 548
- Lam v R [2014] NSWCCA 50
- Estephan v R [2015] NSWCCA 100
- R v Jeremiah [2016] NSWCCA 241
- Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36
- Simpson v R [2019] NSWCCA 137
- Haines v R [2021] NSWCCA 149
- El Masri v R [2022] NSWCCA 27
- Dunn v R [2023] NSWCCA 1
- Wang v R [2023] NSWCCA 208
- Rowland v R [2024] NSWCCA 187